Polygamy in the Monogamous World: Multicultural Challenges for Western Law and Policy

By Martha Bailey; Amy J. Kaufman | Go to book overview

Chapter 5
How Monogamous
Countries Should
Respond

Polygamy

Recognition of Marital Status

Generally, a married couple can be confident that they will be treated as a married couple when they cross the border and enter a new country, despite the difference in marriage laws between the two countries. Every country has its own marriage laws, and also its own rules regarding recognition of foreign marriages. The rules of recognition vary, but generally countries apply the rule of lex loci celebrationis (the law of the place of celebration) or the “personal law of each party,” that is, the law that defines the personal status of each party. Countries that determine validity of marriage in accordance with personal law vary in approach. Some apply the law of each party’s nationality, some the law of each party’s domicile, some the law of each party’s habitual residence.1 Generally, the principle of “universality” is applied to marital status; that is, a status validly acquired under the lex loci celebrationis or under a party’s personal law will be recognized everywhere.2 There is an obvious convenience to this approach.

An exception to the principle of universality applies when recognition of a foreign marriage would manifestly violate a country’s public policy.3 The discretion to refuse recognition of a foreign marriage on this basis is rarely exercised. An English court, considering whether to recognize an Egyptian marriage between an uncle and a niece that would have been within the prohibited degrees of consanguinity under English marriage law, said “it would be altogether too queasy a judicial conscience which would recoil from a marriage acceptable to many peoples of deep religious convictions, lofty ethical standards and high civilisation.”4 In

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Polygamy in the Monogamous World: Multicultural Challenges for Western Law and Policy
Table of contents

Table of contents

  • Title Page i
  • Contents v
  • Acknowledgments vii
  • Chapter 1 - Introduction 1
  • Chapter 2 - Polygamy in Africa, the Middle East, and Asia 7
  • Chapter 3 - Plural Unions 69
  • Chapter 4 - Principles That Should Inform Public Policy 133
  • Chapter 5 - How Monogamous Countries Should Respond 143
  • Notes 189
  • Bibliography 245
  • Index 271
  • About the Authors 279
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